How Colorado can have gun background checks without gun registration

Even if every legal gun sale could be approved and tracked by the federal government, that would have practically no impact on crime. What it would do is redirect limited police resources away from tracking and catching criminals, toward tracking peaceable citizens and harassing them over paperwork errors and violations.

People who commit crimes with guns usually fall into two categories. Either they are one-time killers, in which case a background check will not stop them from legally buying a gun first, or they are career criminals, in which case they are experts at acquiring black market items. In either case, a background check does no good.

That said, in a tiny fraction of cases, a background check might delay a criminal’s plans by pushing him into the black market. In any case, no self-respecting gun owner wants to sell a gun to someone who, due to past criminal violence, cannot legally possess one. So is there a way to set up background checks that do not violate the rights of gun owners or misdirect police resources? I think there might be.

Notice than any possible background check system must employ a “no buy” list, a list of people who may not legally buy a gun. The problem with the existing background check system (and proposed extensions of it) is that it also creates a “buy” list, a list of noncriminals who purchase a gun.

Today’s background check system is a system of gun-owner registration. No, these records are not kept in a central database; instead, they are kept by gun sellers, and they are open to inspection by federal agents at the discretion of those federal agents. Those records could become part of a central database by political fiat. The problem with the federal government registering gun owners (beyond the fact that it’s properly none of the damn business of federal bureaucrats) is that registration can lead to gun confiscation and has already done so in various regions of Europe and the United States.

My modest proposal, then, is to replace the current background check system with one that uses only a “no buy” list. By saying a person with a criminal record cannot legally buy a gun, we are in effect giving that person a sort of extended probation. (The method by which that should be declared is beyond the scope of this article.) Rather than keep its list of criminals to itself, the government could simply publish that list on the internet, along with the photographs of the criminals. Then, if a gun owner wanted to sell a gun to someone, he could check the I.D. and likeness of the buyer against the alphabetized list of criminals. At no point would the gun owner even need to type in the name of the buyer.

Incidentally, employers, dating services, and so on could use the same list for their own purposes.

How would this be enforced? Selling a gun to a known criminal without bothering to check the database would become a tort. If necessary, lawmakers could remove any limitations of liability for those who fail to check the database when selling a gun. Or lawmakers could impose a criminal penalty for selling a gun without checking the database, although this could open the door to abusive enforcement. (It’s already a crime to knowingly sell a gun to someone legally barred from buying one.)

Such a system would have its limitations (as does the current system). Someone with criminal intent but without a criminal record would show up clean. And someone could fake an I.D. But if a criminal has the time and resources to fake an I.D., he’s already able to buy a gun illegally, anyway.

The larger problem with the list is the loss of privacy of those on it. However, if someone goes to the effort of imposing criminal harm on others, I don’t see that loss of privacy as a big deal legally or morally. Moreover, people on the “no buy” list would properly have expedited legal recourse for getting their names removed if appropriate.

Such a list would have a hard time accommodating those declared mentally incompetent to buy a gun. However, I don’t regard that as an overwhelming objection. If someone is so obviously mentally ill that he’s a threat to himself or others, he needs a lot closer attention than simply to be placed on a list. The way to handle such problems is to address them directly, not harass and intimidate millions of American gun owners for the sake of a tiny population of those with severe mental illness.

Regarding those who have some other flag in the background check system but no criminal record, I uphold the view—apparently out of fashion with today’s Democrats—that an individual should be presumed innocent until found guilty by a jury of his peers. If someone poses an objective threat to others, police may detain or observe him. Nevertheless, I’d rather see an openly published list of those with flags, than a system of gun-owner registration.

Obviously, the long-term goal of those who created the existing background check system is to open the door to a system of universal gun-owner registration. If such is ever achieved, the gun banners will fight relentlessly for the universal confiscation of guns, starting with the ones most useful for self-defense.

A possible alternative is for the government to publish and maintain the “no buy” list of convicted criminals (and possibly others) who may not legally buy a gun. If the goal were really to reduce crime, rather than to register peaceable gun owners, that is the plan that politicians would consider.